LOPEZ v. COLLIER

LOPEZ v. COLLIER. (Circuit Court of Appeals, Fifth Circuit. April 5, 1904.) No. 1,331. 1. Appeal — Findings of Trial Court — Conflicting Evidence — Review. A finding of fact by the trial court based on conflicting evidence will not be reversed on appeal where it is not clearly erroneous. Appeal from the District Court of the United. States for the Southern District of Florida: J. M. Phipps and George G. Brooks, for appellant. G. Bowne Patterson and Joseph Paxton Blair, for appellee. Before PARDEE, McCORMICK, and SHEEBY, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is a suit for a balance due for work done upon a naphtha launch belonging to Eopez, defendant in the court below, and appellant here, and for materials furnished in the course of the work. The total alleged cost of the material, work, etc., was $1,693. Payments on account and credits amounted to $803. The balance claimed was $889.61. The defendant claims that it was agreed and understood that the work was not to cost more than $1,000; that it was not good work; that the payments made, added to the amounts paid out, subsequent to the return of the boat by Collier, to have work done which should have been done by Collier, leave nothing due to libelant. There was a decree in favor of the libelant for $604.67, from which this appeal is taken. The case presents simple questions of fact. The evidence is conflicting. Several witnesses testified for libelant, and proved up his case. They were contradicted by several witnesses produced by defendant to prove up his case. The testimony was all taken in presence of the trial judge, who thus had an opportunity to see the witnesses and observe their demeanor while testifying; and, on the evidence, we are not able to say that he reached an erroneous conclusion. The decree appealed from is affirmed.